October 25, 2007
MANOJKUMAR J. JAVIYA, PLAINTIFF-RESPONDENT,
SANGEETA M. JAVIA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-1886-05C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 10, 2007
Before Judges Collester and C.L. Miniman.
In this unopposed appeal,*fn1 defendant Sangeeta M. Javia filed a notice of appeal on October 17, 2006, with respect to five orders entered in the Family Part in Middlesex County: (1) an order for pendente lite support entered on July 25, 2005; (2) a judgment of divorce entered on May 12, 2006; (3) an order denying a motion for a new trial entered on May 12, 2006; (4) a September 22, 2006, order denying all of Sangeeta's pending motions; and (5) a September 26, 2006, order granting relief to Manoj on his cross-motion. In order to identify the issues on appeal and determine the scope of our review, we first consider whether all of these orders are appealable.
We cannot consider the appeal from the pendente lite order because such orders merge into the judgment of divorce.
The temporary nature of the pendente lite support order is illustrated by the general rule that provisions of a pendente lite order do not survive the entry of a judgment of divorce unless expressly preserved in it or reduced to judgment prior to entry of final judgment. Bauza v. Bauza, 201 N.J. Super. 540, 542-43 (App. Div. 1985) (pendente lite counsel fee award not expressly preserved merges in final judgment); Kuloszewski v. Kuloszewski, 235 N.J. Super. 399, 400 (Ch. Div. 1989) (pendente lite counsel fee reduced to judgment survives entry of final judgment of divorce). See also Lief v. Lief, 14 N.J. Misc. 27 (Ch. 1935); Wilson v. Wilson, 14 N.J. Misc. 33 (Ch. 1935). [Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995).]
As a consequence, we do not address the issues raised by Sangeeta with respect to the pendente lite order.
The second and third orders, both entered on May 12, 2006, were a judgment of divorce and a denial of a motion for a new trial. Sangeeta was required to file a notice of appeal within forty-five days of the entry of the orders, i.e., on or before June 26, 2006. R. 2:4-1(a). Because the notice of appeal was not filed until October 17, 2006, we must determine whether the time to appeal the orders of May 12, 2006, had been tolled or whether it expired.
A motion to amend the judgment of divorce was evidently filed before the time to appeal expired because an order was entered on Wednesday, June 28, 2006, amending paragraph nine of the judgment of divorce.*fn2 A motion to amend a judgment under R. 4:49-2 will toll the running of the time to appeal from the filing of the motion to the entry of the order thereon. R. 2:4-3(e) (tolling the time to appeal based on applications made pursuant to R. 1:7-4, 4:40-2, 4:49-1 and -2 and providing that "[t]he remaining time shall again begin to run from the date of the entry of an order disposing of such a motion."). The record before us does not contain any copy of Sangeeta's motion to amend, but we presume that she complied with R. 5:5-4(c) and filed the motion twenty-four days prior to Friday, June 23, 2006. Thus, with the motion presumptively filed on May 31, 2006, eighteen of the forty-five days for appeal had elapsed and the time for appeal began to run again on June 29, 2006, and absent any further tolling, would expire on July 25, 2006.
From the record before us, it appears that Sangeeta filed three post-judgment applications with the Family Part. The first application was for an order to show cause respecting the termination of gas service to Sangeeta's home. The order was made returnable on July 21, 2006, but the hearing date was adjourned to August 31, 2006, after Manoj gave Sangeeta $1500 toward support arrears. This application for an order to show cause was governed by R. 1:10-3 and, thus, it did not toll the time for filing an appeal from the May 12, 2006, orders.
Sangeeta then filed a motion on or about July 18, 2006, for "reconsideration" of her entire case. First, she sought (1) enforcement of litigant's rights with respect to unpaid support, (2) relief from the judgment based on new evidence, and (3) termination of visitation. The time for filing a R. 4:49-2 motion for reconsideration expired on June 1, 2006. As a result, this motion could only be considered under R. 1:10-3 and 4:50-1 and, thus, did not toll the time to appeal the May 12, 2006, orders. R. 2:4-3(e). The time to appeal those orders expired on July 25, 2006, long before the appeal was filed on October 17, 2006, and could not be extended. R. 2:4-4(a). Accordingly we will not consider any of the issues raised with respect to the May 12, 2006, order and judgment of divorce because they are no longer appealable.
The October 17, 2006, appeal was timely as to the orders of September 22 and 26, 2006, but there are other impediments to appeal. Although the order to show cause entered on July 12, 2006, is included in the appendix on appeal, Sangeeta did not include the application she filed to secure this order. She included her July 18, 2006, motion in the appendix, but she did not include the cross-motion that Manoj filed in response to her applications. She included only her July 25, 2006, answer to that cross-motion. These applications were heard on August 31, 2006, and were decided, at least in part, from the bench on that date.
Less than a week later, Sangeeta filed another motion for reconsideration on September 6, 2006, and Manoj again cross-moved. Sangeeta answered the cross-motion on September 15, 2006. Once again, Sangeeta did not include the cross-motion in her appendix. All three applications were denied by an order entered on September 22, 2006.*fn3 An order resolving the cross-motions of Manoj was entered on September 26, 2006.
Rule 2:6-1(a)(1) in part requires that those portions of the record "as are essential to the proper consideration of the issues . . . shall be included in the appendix." We have addressed the failure to submit a fully conforming appendix on a number of occasions. We observed in Johnson v. Schragger, Levine, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001) that "the failure to supply pleadings that are essential to the proper consideration of the issues hinders our appellate review." In that case, neither party included the order of dismissal in their appendices. Ibid.; see also Comm. Hosp. Group, Inc. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte, P.C., 381 N.J. Super. 119, 127 (App. Div. 2005). We made it clear in Newman v. Isuzu Motors America, Inc., 367 N.J. Super. 141, 145 (App. Div. 2004), that a motion for reconsideration must be included in the appendix. The papers opposing such a motion must also be included in the appellant's appendix because R. 2:6-1(a)(1) requires the appellant to include "such parts [of the record] as the appellant should reasonably assume will be relied upon by the respondent in meeting the issues raised."
In Society Hill Condominium Ass'n v. Society Hill Associates, 347 N.J. Super. 163, 177-78 (App. Div. 2002), we found that the failure to include the notice of motion and supporting papers rendered review "impossible." We concluded that we had no alternative but to affirm. Id. at 178. We reach the same conclusion here. We do not have the opposition to Sangeeta's various motions and we do not have either of the cross-motions. It is impossible to review the propriety of the judge's determinations looking at only the evidence Sangeeta submitted to support the relief she sought.
Furthermore, the materials included in the appendix do not suggest any glaring errors in the judge's rulings. Many of the issues raised by Sangeeta were ones that could and should have been presented during the divorce trial, such as (1) the alleged failure to pay utility bills pendente lite, (2) unpaid pendente lite support, (3) entitlement to distribution of retirement assets that Sangeeta admitted her attorney forgot to address, (4) an unsubstantiated claim that Manoj had been hiding income prior to the trial and had transferred almost $150,000 of marital assets to his family members in 2003, and (5) an alleged agreement in 1999 that Sangeeta could have the marital home. The judge concluded that all of these issues could and should have been raised during the divorce trial. We are satisfied from the record before us that Sangeeta was not entitled to relief under R. 4:50-1 with respect to these issues. Harrington v. Harrington, 281 N.J. Super. 39, 48 (App. Div.), certif. denied, 142 N.J. 455 (1995) (modification of equitable distribution only granted if "unjust, oppressive or inequitable").
Sangeeta raised another issue related to the sale of the marital home. Back in March 2006 the parties agreed that Sangeeta could buy out Manoj's interest within a certain amount of time. They apparently could not agree on the buy-out price. Sangeeta never filed a motion respecting the establishment of a buy-out price. On February 28, 2006, Advantage Realty Inc. prepared a comparative market analysis for Sangeeta recommending a listing price of $263,300. However, she did not agree to this number, seeking to pay Manoj one-half of the assessed value of $135,800. An assessed value may or may not equate to market value. Sangeeta did not present any evidence that the market value was less than $263,300 and the judge correctly ordered the marital home sold. Miller v. Miller, 160 N.J. 408, 419 (1998) (party moving for modification of order bears burden of demonstrating changed circumstances).
There was also an issue respecting post-judgment support arrears in the amount of $3967, which Manoj admitted existed. He claimed a credit against that amount for the $1500 he paid at the time the order to show cause was entered in order to secure consent to an adjournment of the return date. Sangeeta objected to the credit, again claiming that the payment was to be applied to unpaid pendente lite utility bills. Having determined that such unpaid bills did not support relief from the judgment, the judge correctly rejected this objection and gave a $1500 credit to Manoj.
Sangeeta also raises a number of issues respecting the relief granted to Manoj. We cannot evaluate her concerns about that relief because we do not have the cross-motions before us.